Citation Nr: 0815813
Decision Date: 05/14/08 Archive Date: 05/23/08
DOCKET NO. 06-34 585 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include depression and post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran and his wife
ATTORNEY FOR THE BOARD
Rebecca N. Poulson, Associate Counsel
INTRODUCTION
The veteran served on active duty in the Army from August
1966 to August 1969. He also has unverified service in the
Army Reserves. He received the "Imjin Scout" insignia for
service along the DMZ in Korea while a member of Company C,
2/23rd Infantry, from May 1967 to June 1968.
This matter is before the Board of Veterans' Appeals (Board)
from a May 2005 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Little Rock, Arkansas,
which, in pertinent part, denied service connection for post-
traumatic stress disorder (PTSD) and depression. The veteran
timely filed a Notice of Disagreement (NOD) in January 2006
with respect to the depression claim only. The RO provided a
Statement of the Case (SOC) in September 2006 that addressed
both claims. However, in October 2004, the veteran timely
filed a substantive appeal with respect to the depression
claim only.
In February 2008, the veteran and his wife testified at a
Travel Board hearing before the undersigned Acting Veterans
Law Judge. A transcript of the hearing is associated with
the claims folder. During the hearing, the veteran clarified
that he is seeking service connection for an acquired
psychiatric disorder, to include PTSD and depression.
The Board notes that during the hearing, the veteran appeared
to raise an informal request to reopen his claim for service
connection for a skin rash secondary to Agent Orange
exposure. This issue is not developed for appellate
consideration and is referred to the RO for appropriate
action.
In April 2008, the veteran submitted additional evidence
along with a waiver of initial RO consideration.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board finds that additional development is warranted to
address the merits of the appellant's appeal for entitlement
to service connection for an acquired psychiatric disorder,
to include depression and PTSD. 38 C.F.R. § 19.9 (2007).
The veteran alleges that he suffers from depression and PTSD
due to service in the DMZ zone in Korea. At his March 2008
Travel Board hearing, he testified that a friend was killed
in a foxhole by a grenade. He also claimed that another
soldier grabbed him by the throat. The Board does not
dispute this testimony. The veteran stated that he suffers
from nightmares, sleep disturbances, memory problems, and
anxiety. He has problems keeping friends and does not like
being around people. He sits with his back to the wall when
out in public.
VA treatment records from February 2005 to April 2005 show
that the veteran was treated for major depressive disorder,
rule out PTSD. He was placed on medication.
The veteran has not been afforded a VA examination for
depression or PTSD. An examination or opinion is necessary
if the evidence of record: (a) contains competent evidence
that the claimant has a current disability, or persistent or
recurrent symptoms of disability; (b) establishes that the
veteran suffered an event, injury or disease in service; (c)
indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service, but (d) does not contain sufficient medical
evidence for the Secretary to make a decision on the claim.
See 38 C.F.R. § 3.159(c)(4). The Court has held that the
requirement for evidence that a disability "may be
associated" with service is a "low threshold" requirement.
McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
As the record includes a diagnosis of a condition that may be
service-connected (depression), evidence that the veteran
engaged in combat with the enemy in Korea, and statements
from the veteran that his depression and PTSD are related to
service (which satisfies the "low threshold" standard of
McLendon), a VA examination for a medical opinion is
necessary.
The most recent VA treatment records present in the claims
folder are dated in 2006. The veteran indicated at his
February 2008 Travel Board hearing that he currently
receives mental health treatment from the VA. Also, the
veteran testified that he received mental health treatment
from a private provider in the early 1970's. As these
treatment records may indeed contain pertinent information,
they should be secured, if available.
Finally, during the pendency of this appeal, on March 3,
2006, the Court issued a decision in the consolidated appeal
of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91
(2006), which held that the VCAA notice requirements apply to
all five elements of a service connection claim, including
the degree of disability and the effective date of an award.
Here, the veteran was not notified of the criteria for
establishing a disability rating or the effective date of an
award.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should provide the
veteran with VCAA notice under 38
U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b), that includes an explanation
as to the information or evidence
needed to establish ratings and
effective dates for the benefit sought
as outlined by the Court of Appeals for
Veterans Claims in Dingess v.
Nicholson, 19 Vet. App. 473, 484, 486
(2006).
2. Obtain any and all additional VA
post-service treatment records dated
from September 2004 to the present that
are not already of record, including
mental health treatment records from
the Central Arkansas VA Healthcare
System in Little Rock and North Little
Rock.
3. After obtaining authorization for
the release of private medical records,
take the necessary steps to obtain any
records from Dr. John A. Hall in
Clinton, Arkansas from 1970 to 1975.
All attempts to procure records should
be documented in the file. If these
records cannot be obtained, a notation
to that effect should be inserted in
the file.
4. Schedule the veteran for a VA
psychiatric examination for the purpose
of determining the nature and etiology
of any psychiatric disorder that is
currently present, to include
depression and PTSD. The claims folder,
to include a copy of this REMAND, must
be made available to and reviewed by
the examiner prior to completion of the
examination report, and the examination
report must reflect that the relevant
evidence in the claims file was
reviewed. Any indicated studies should
be performed. The psychiatrist is
requested to provide an opinion as to
whether it is at least as likely as not
(50 percent or greater probability)
that the veteran has a current
psychiatric disorder, to include PTSD
and depression, which is causally
linked to the verified in-service
stressors of having a friend killed by
a grenade and being grabbed by the
throat by another soldier.
The psychiatrist is advised that the
term "as likely as not" does not mean
within the realm of possibility.
Rather, it means that the weight of
medical evidence both for and against a
conclusion is so evenly divided that it
is medically sound to find in favor of
causation as to find against causation.
More likely and as likely support the
contended causal relationship; less
likely weighs against the claim.
The psychiatrist is also requested to
provide a rationale for any opinion
expressed and is advised that if a
conclusion cannot be reached without
resort to speculation, he or she should
so indicate in the examination report.
5. Thereafter, following any additional
development that may be indicated, the
AMC should readjudicate the veteran's
claim for service connection for an
acquired psychiatric disorder, to
include PTSD and depression. If any
benefit sought on appeal remains
denied, the veteran and his
representative should be provided a
supplemental statement of the case
(SSOC). An appropriate period of time
should be allowed for response.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
ROBERT E. O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).